Delhi District Court
State vs . Subhan Khan & Anr. on 25 March, 2021
Page 1 of 24
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 69/2008
PS Kamal Market
U/s 4/5/7/8 of ITP Act, 1956
State vs. Subhan Khan & Anr.
CNR No. DLCT02-0012970-09
Date of institution of case: 04.11.2009
Date when judgment reserved: 20.03.2021
Date when judgment pronounced: 25.03.2021
JUDGMENT
Unique ID no. of the case : 302949/16
Date of commission of offence : 21.05.2008
Name of complainant : SHO Inspector Bala Sharma
PS Kamla Market, Delhi.
Name and address of accused : (i) Subhan Khan
S/o Azeem Khan
Village Bagai Devraj,
PS Loria, District Bettiah
West Champaran, Bihar
Present address:- 156,
2nd Floor, Block C-B,
Nand Nagri, Delhi.
(ii) Kavita d/o Ramaiya
R/o Kotha No. 52, Ist Floor,
Left Side, GB Road, Delhi.
Offence complained of : U/s 4/5/7/8 of ITP Act
Plea of accused : Pleaded not guilty
Date of order : 25.03.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION OF THE CASE
1. The case of the prosecution in brief is that on 21.05.2008 at about 06.50 p.m at Baramda (Veranda) Kotha No. 52, GB Road, Kamla Market, Delhi, within the jurisdiction of PS Kamla Market, accused Kavita had seduced the decoy ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:20:33 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 2 of 24 customer namely Shakur Ahmed for the purpose of prostitution in a public place and carrying on prosecution in the notified area and thereby committed an offence punishable u/s 7/8 of The Immoral Traffic (Prevention) Act, 1956 (hereinafter called as ITP Act) and on the abovesaid date, time and place, accused Subhan Khan acted as a tout or pimp on behalf of prostitute Kavita, induced her to carry on prostitution and was also found to be living on the earning of prostitution of Kavita and thereby committed an offence punishable u/s 4/5 of ITP Act. On the basis of above allegations, the present FIR No. 69/08 was registered at PS Kamla Market.
2. After investigation, charge sheet was filed against accused persons. Cognizance of aforesaid offence was taken and both accused were summoned. Upon appearance, copy of charge sheet was supplied to them in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge u/s 7 & 8 ITP Act was framed against accused Kavita and charge u/s 4 & 5 ITP Act was framed against accused Subhan Khan on 29.09.2009 to which they pleaded not guilty and claimed trial.
3. Thereafter, the prosecution was given opportunity to lead evidence and in support of its version the prosecution examined nine witnesses:-
PW-1 Shakur Ahmad had deposed that he lived at Baghpat and was running barber shop at parking no.1, Shradhanand Marg, Delhi. On 22.05.2008 at about 6.30 p.m he was going to G.B. Road to Lahori Gate side and at that time SHO Inspector Bala Sharma met him near Dena Bank, G. B. Road and SHO asked 4-5 passersby to join the raiding party after informing them regarding secret information but they refused the same stating their reasonable causes and left the spot without disclosing their names and addresses. He joined the raiding party and after moving 25-30 steps, he left the raiding party and went to his ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:21:03 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 3 of 24 Barber shop.
At that stage ld. APP for the State sought permission to cross examine the witness which was granted. During cross-examination by Ld. APP for the State, he admitted that he had made the statement before the police Ex.PW1/A and SHO Inspector Bala Sharma got his search conducted through HC Charat Lal. He admitted that after search, he was given Rs. 160/- (consisting one note of Rs. 100 bearing no. SAK295268 and one note of Rs. 50/- bearing no. JFL 653863 and one note of Rs. 10 bearing no. 87T817827) after signing the same by the SHO Inspecor Bala Sharma. He admitted that SHO Inspector Bala Sharma instructed him that he should go to near stair in the baramda of Kotha No. 52, GB Road and if any boy or girl instigate/seduce him by making signal to bargain for the prostitution and on finishing the bargaining, he should move his hand on his head to make signal. He also admitted that Ct. Ajay Kumar who was in civil dress was instructed to follow him by keeping some distance. He admitted that SHO Inspector Bala Sharma alongwith SI Anuj Aggarwal, HC Charat Lal and Lady Ct. Sunita went to the Kotha No. 51 and hid themselves before the pillars of baramda of Kotha no. 51, GB Road. He admitted that at about 06.50 p.m when he reached near the stairs at Baramda of Kotha No. 52, at that time one girl Kavita and one boy Subhan Khan who were standing there called him by making signal towards them. He admitted that Subhan Khan told him that the said girl namely Kavita would give him a lot of sexual pleasure and he would produce her before him in the kotha situated above and he would take Rs. 50/- for producing the said girl Kavita. He further admitted that the said girl Kavita also consented for the same and told him that she would give him such a good physical pleasure during intercourse that he would forget his wife and would come to her again and again. He admitted that accused Kavita demanded Rs. 160/- for that and when he told her that she was demanding much money then she told him that she was not demanding much ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:21:22 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 4 of 24 money as she had to pay Rs. 50/- to the kotha malkin Ameena Begum from the said Rs. 160/- in lieu of using her kotha. He admitted that then he gave Rs. 160/- (which were given to him by SHO Inspector Bala Sharma) to the said girl Kavita, out of which Rs. 50 she gave to the said boy Subhan Khan. He admitted that after completion of the bargaining, he made signals by moving his hand on his head on receiving the signal, SHO Inspector Bala Sharma alongwith his staff reached there and apprehended both the aforesaid accused persons namely Kavita and Subhan Khan and in search from the right hand of Kavita, Rs. 110/- (one note of Rs. 100/- bearing no. 5AK295268 + one note of Rs. 10/- bearing no. 87T817827 which were given to him by SHO inspector Bala Sharma) were recovered and from the search of said accused Subhan Khan, one note of Rs. 50/- bearing no. JFL653863 was recovered from the right pocket of the jeans of the accused Subhan Khan. He admitted that search of accused Subhan Khan was conducted by HC Charat Lal. He admitted that the money was taken into police possession vide seizure memos Ex.PW1/A and Ex.PW1/B bearing his thumb impression at point A respectively. Both the accused persons namely Kavita and Subhan Khan were correctly identified by the witness. PW-1 admitted that personal search and handing over memo of Rs. 160/- was prepared in his presence vide memo exhibited as Ex. PW1/C bearing his thumb impression at point A. PW-1 correctly identified the case property i.e. two envelope duly sealed with the seal of 'BS', the first envelope was opened from which Rs. 100 (100X1 bearing no. 5AK295268+10X1 bearing no. 87T817827) were taken out and second envelope was opened from which one currency note of Rs. 50/- bearing no. JFL653863 was taken out. All these three notes were shown to the witness and the witness had correctly identified the same as those which were handed over to him by SHO Inspector Bala Sharma and recovered from the possession of the accused persons and the same was collectively exhibited as Ex. P.1. He further admitted that he did not ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:21:41 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 5 of 24 mention the aforesaid facts earlier in his examination due to lapse of time. During cross-examination by ld. Counsel for the accused Kavita, PW-1 had deposed that he was around 50 years old and admitted that he did not have any permission from MCD to carry on the said barber shop. He carried on the said shop on challan and he did not have any tehbazari regarding the said shop. The said challan was made by the MCD. He admitted that to carry on his barber shop at the said place, police officials of PS Kamla Market had no objection. He had appeared in the court 5/6 times in some other cases to depose before the court. He had come to depose before the court in a case which was fixed for 17.04.2012 and also in another case FIR No. 30/08 PS Kamla Market u/s 4/5/8 ITP Act which was fixed for 22.02.2012. He admitted that his name was mentioned in some cases by the police that was why he had to come to the court as a witness. He deposed that he was illiterate and his statement was not recorded by the police in his presence. He did not remember whether Inspector SHO Bala Sharma or any other police officials gave him money on the date of incident or not. He admitted that no document was prepared by the police at the spot. He could not state if other papers might had been prepared in the PS by the police officials. He did not remember what was the day on 21.05.2008. He admitted that he was advised by the police officials regarding as to how he had to depose before the court but he did not remember the name of those police officials nor he could identify them. He admitted that he had been made witness in many cases of ITP Act by the police officials of PS Kamla Market.
4. PW-2 W/Ct. Sunita had deposed that on 21.05.2008 she was posted as a constable at PS Kamla Market and on that day, she along with SHO Ins. Bala Sharma were on patrolling at about 6.30 pm. On the direction of SHO one raiding party was constituted upon the information of a secret informer and at about 6.50 pm, one lady namely Kavita was apprehended from the stairs of ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:21:58 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 6 of 24 kotha number 52, G. B Road. On the personal search of accused Kavita, 110/- rupees were recovered and IO kept the notes in an envelope and sealed it with seal of BS. Thereafter, IO prepared seizure memo of that envelope which was already exhibited as Ex.PW1/A which bears her signature at point B. IO also prepared arrest memo and personal search memo of accused which were Ex.PW2/A and Ex.PW2/B respectively which bear her signature at points A. IO also recorded disclosure statement of accused Kavita which was Ex.PW2/C which bears her signature at point A. IO recorded her statement in that regard. (Accused Kavita was correctly identified by the witness.)
5. PW-3 ASI Brij Lal had deposed that on 21.05.2008 he was posted at PS Kamal Market as HC and was working as duty officer from 4:00 p.m to 12 night and on that day he received a rukka sent by Inspector Bala Sharma brought by Ct. Ajay Kumar and on the basis of which he registered present FIR. He had brought the original FIR, copy of the same was Ex.PW.3/A bearing his signatures at point A. He also made an endorsement on the rukka Ex.PW.3/B bearing his signature at point X. The copy of FIR and original rukka were given to Ct. Ajay to hand over to Inspector Bala Sharma for further investigation.
6. PW-4 HC Ajay Kumar had deposed that on 21.07.2008 he was posted as constable at PS Kamla Market and on that day he along with HC Chartram were on patrolling of beat area GB Road. On that day at about 06:30 pm, when they were near Kotha No. 42, at the same time Inspector Bala Sharma (SHO concerned) along with SI Anuj, one lady constable, operator Rakesh and driver reached there on gypsy. Thereafter, driver had parked the gypsy at police booth. Thereafter, Inspector Bala Sharma started patrolling along with them. When they reached at Dena Bank, then the secret informer informed Inspector ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:22:13 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 7 of 24 Bala Sharma that in front of Kotha No. 52, one lady wearing mehendi colour kurta and maroon colour salwar and a boy with her who was wearing blue colour jeans and white colour pant were inviting passersby for sex for money and they were demanding Rs. 160/- for one time pleasure. Thereafter, Inspector Bala Sharma asked two three public persons to become a part of raiding party. One public person namely Shakur Ahmad aged 40 years got ready to be a part of the raiding party. Thereafter, HC Charat Ram personally searched Shakur Ahmad and took all the belongings from him. SI Anju conducted his personal search and took all his belongings. Thereafter, Inspector Bala Sharma took out three currency notes in the denomination of 100/-, 50/- and 10/- with her signature and the same were given to Shakur Ahmad as he was in civil dress so he went along with Shakur Ahmad as decoy customer being followed by the raiding party. When they reached in front of Kotha No. 52, then accused Subhan Khan and Kavita invited them for sexual pleasure in consideration of Rs. 160/-. Shakur Ahmad told the accused persons that money consideration was too much then he started bargaining with them. Thereafter, accused Subhan Khan told them after pointing out to accused Kavita that she was master in sexual pleasure and will satisfy you completely. Accused Kavita told that she had to give Rs. 50/- to the Kotha Manager and Rs. 50/- to accused Subhan Khan so Rs. 160/- was not much for the same. Thereafter, Shakur Ahmad gave Rs. 160/- to accused Kavita. Thereafter, accused Kavita gave Rs. 50/- to accused Subhan Khan. Thereafter, Shakur Ahmad indicated to the raiding party by putting his hand on his head. Thereafter, raiding party which was present nearby came there. Inspector Bala Sharma with lady Constable apprehended accused Kavita and SI Anuj with HC Charatram apprehended accused Subhan Khan. Thereafter, HC Chartam conducted search of accused Subhan Khan and found Rs. 50/- bearing the signature of Inspector Bala Sharma with the same number i.e. JFL 653863 was recovered from right ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:22:31 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 8 of 24 pocket of his pant. Inspector Bala Sharma searched accused Kavita and found Rs. 110/- with the signature of Inspector Bala Sharma from the right hand of the accused Kavita. Thereafter, Inspector Bala Sharma prepared the seizure memos of Rs. 110/- and Rs. 50/- separately. The seizure of Rs. 50/- recovered from accused Subhan Khan was already Ex.PW1/B bearing his signature at point 'B'. Inspector Bala Sharma prepared the pullanda and sealed it with the seal of BS and the same was handed over to the SI Anuj. Thereafter, Inspector Bala Sharma prepared the tehrir and handed over the same to him for registration of FIR at about 08:15 pm. Thereafter, he came back from PS to the spot with the original tehrir and copy of the FIR and handed over the same to Inspector Bala Sharma. Thereafter, Inspector Bala Shrama arrested the accused persons vide arrest memo of accused Kavita already Ex.PW2/A and arrest memo of accused Subhan Khan was Ex.PW4/A bearing his signature at point 'A' and the personal search memo of accused Subhan Khan was Ex.PW4/B bearing his signature at point 'A'. Thereafter, both the accused persons were medically examined and put behind the bar. (Accused persons were correctly identified by the witness in the court). IO prepared seizure memo of currency note of Rs. 50/- which was recovered from accused Subhan Khan which was already Ex.PW1/B bearing his signatures at point C. IO prepared personal search memo of decoy witness Shakur Ahmad and handed over to him Rs.160/- (currency notes of denomination Rs.100 + Rs.50 + Rs.10) and prepared memo for the same which was already Ex.PW1/C bearing his signature at point C. IO prepared disclosure statement of accused Kavita in his presence which was already Ex.PW2/C bearing his signature at point C. The witness stated that he could identify the case properties if shown to me. At that stage, MHCM produced the case property i.e. two envelope bearing particulars of the present case and having seal of court on it, seal was opened with the permission of the court and out of one envelope of two currency notes ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:22:47 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 9 of 24 of Rs.100/- and of Rs.10/- were taken out which were signed by Inspector Bala Sharma and case property as per description mentioned in seizure memo were shown to the witness who correctly identified the same. Similarly, another envelope of one currency note of Rs.50/- was taken out which was signed by Inspector Bala Sharma and case property as per description mentioned in seizure memo was shown to the witness who correctly identified the same. The case property was already Ex.P1(Colly.). Ld. APP for state sought permission to ask leading question to the witness which was granted. He admitted that he told to the IO in his statement recorded u/s 161 Cr.P.C, the date of incident as 21.05.2008 and not 21.07.2008.
During cross-examination by Ld. Counsel for both the accused persons he stated that he did not remember the beat number in which he was posted on the date of incident. He voluntarily disclosed that it was first beat situated at G. B. Raod, PS Kamla Market. The area of first beat situated at G. B. Road started from Rajdhani Cement to Kotha no. 52 and its backside area. He did not remember the property number of Rajdhani Cement. He was present at 5.30 pm alongwith HC Charat Ram in front of Kotha no. 42 in his beat. HC Charat Ram was also in his beat. Inspector Bala Sharma reached near Kotha no. 42 at about 5.30 pm. She was on Govt. vehicle but he did not remember the registration number of the same. He denied the suggestion that he was not present in his beat as stated earlier, therefore, he was not in position to tell the registration number of the same. Insp. Bala Sharma accompanied with driver Ct. Nidan, Ct. Rakesh operator initially in Govt. vehicle. SI Anuj Aggarwal and one lady Ct. whose name he did not remember also arrived at the same time when Insp. Bala Sharma arrived at Kotha no. 42. He did not remember the property number of Dena Bank situated at G. B. Road. He did not have any knowledge as to whether the property number of banks situated within the jurisdiction of their beat was maintained in the PS. He voluntarily stated that he ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:23:04 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 10 of 24 knew the situation of Dena Bank at G. B. Road and he could specify its physical location. He denied the suggestion that he was never posted in the first beat of G. B. Road therefore, for that reason he was not aware about the property numbers. Insp. Bala Sharma stopped her vehicle in front of police booth which situated opposite to Kotha no. 42. He did not know as to whether Shakur Ahmad was working as a Barber in their beat. He denied the suggestion that police used Shakur Ahmad as their stock witness. He did not know Shakur Ahmad by his name however, he might know him by his face. On being asked if he knew PW Shakur Ahmad on 21.05.2008 i.e. at the date of incident? He replied affirmatively and stated that at that time, he was joined in investigation as a decoy customer in the present case. He denied the suggestion that SHO Bala Sharma had not given Rs.160/- to witness Shakur Ahmad in his presence.
7. PW-5 Insp. Anuj Aggarwal deposed that on 21.05.2008, he was posted as SI at PS Kamla Market. On that day, he reached at GB Road while patrolling and accompanied with W/Ct. Sunita and Insp. Bala Sharma/SHO where they met with HC Charat Lal and Ct. Ajay Kumar and thereafter, started patrolling along with above-said officials. When they reached near Dena Bank, one secret informer had shared one information regarding prostitution racket and about one girl and one boy who were influencing and inviting the people/passersby for sexual pleasure for money at Kotha no. 52. Thereafter, SHO Bala Sharma requested public persons to join the investigation as she constituted a raiding party and one public person namely Shakur Ahmad became the member of said raiding party from the public persons along with above said staff members including him. SHO Bala Sharma instructed members of raiding party including the said public person Shakur Ahmad about the said raid. SHO Bala Sharma got personal search of Shakur Ahmad conducted through HC Charat Lal and thereafter handed over the currency notes of Rs. 160/- with ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:23:24 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 11 of 24 denomination of 100x1, 50x1 and 10x1 rupee total 160/-. IO prepared personal search and handing over memo already Ex.PW1/C bearing his signature at point B. Ct. Ajay Kumar was in civil dress and he conducted his personal search. SHO Bala Sharma made Shakur Ahmad and Ct. Ajay Kumar as decoy customer and instructed them to fix a deal with said girl or boy who were indulged in prostitution and inviting customers. He stated that they all were following them at the distance of around 50-60 meters. Shakur Ahmad alongwith Ct. Ajay Kumar went near Kotha no. 52 where they had seen that they both were talking to that girl and boy and after some time Shakur Ahmad had given them desired signal. They proceeded towards them in hurry and in the meantime, W/ct. Sunita apprehended the said girl and he apprehended the said boy near kotha no. 52. SHO Bala Sharma conducted personal search of that girl who revealed her name as Kavita and currency notes of Rs. 110/- was recovered from her possession with denomination of 100x1 and 10x1. HC Charat Lal conducted personal search of that boy who revealed his name as Subhan Khan and currency note of Rs. 50/- was recovered from his possession with denomination of 50x1. SHO Bala Sharma made inquiries from them and thereafter prepared rukka and same was handed over to Ct. Ajay Kumar for registration of FIR. Ct. Ajay Kumar went to PS and after some time, he returned back to the spot along with copy of FIR and original rukka and handed over the same to SHO. IO prepared the seizure memo of currency notes recovered from both accused persons and by preparing separate memos already Ex.PW1/A and Ex.PW1/B both bearing his signature at point B. After interrogation IO arrested both the accused present in the court today(accused were correctly identified by the witness) and prepared arrest memos and personal search memos already Ex.PW2/A, Ex.PW4/A and Ex.PW2/B, Ex.PW4/B all bearing his signature at point B. IO recorded the disclosure statement of accused Kavita and prepared memo already Ex.PW2/C bearing ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:23:42 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 12 of 24 his signature at point B. IO prepared pullanda of said recovery notes and sealed them with seal of BS and handed over to him. IO recorded his statement. The witness stated that he could identify the case properties if shown to him.
During cross-examination by ld. Counsel for both accused he deposed that it was about 5.20 pm, when they left for patrolling duty. He did not remember the departure DD entry number but it was recorded. He did not know about the particulars and address of Dena Bank. He did not remember whether the Dena Bank was firstly situated at First Floor, G. B. Road building and subsequently it was shifted opposite to that at ground floor, near railway line. He denied the suggestion that he was not on patrolling duty along with other police officials therefore, he did not say about the DD entry as well as the exact location of Dena Bank. They reached at the spot at about 6.30 pm. He admitted that public persons were going here and there when they visited the spot and shops were kept open. He did not remember whether SHO requested any shopkeeper to join the investigation, however, he asked to passersby. He denied the suggestion that witness Shakur Ahmad was their stock witness. He did not remember whether Shakur Ahmad was made witness in another matter also i.e. case FIR no. 30/08 PS Kamla Market and other 5-6 matters. He did not know whether Shakur Ahmad was barber. He denied the suggestion that currency notes of Rs.160/- with denomination of 100x1, 50x1 & 10x1 were handed over to Shakur Ahmad or that no such raid was conducted on alleged date and time or that accused persons were not arrested on alleged date and time and they were planted later on and it was false case against them or that IO did not investigate the case properly and fairly and falsely implicated the accused persons in the present case. Accused Kavita was apprehended in the veranda near kotha no. 52 at ground floor and her personal search was conducted at the same place openly. He denied the suggestion that no recovery was affected from accused persons. ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:23:58 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 13 of 24
8. PW-6 HC Suraj Bhan deposed that he was working as a MHC(M) Case property at PS Kamla Market since February 2018. He brought the original record of register no.19 pertaining to present case. As per record of 21.05.2008, entry no. 2415 was prepared by the then MHC(M) PS Kamla Market. As per the record of above-said entry which showed the particulars of present FIR no. 69/08 as Insp. Bala Sharma deposited case property i.e. currency notes with denomination of 50x1 no. JFL653863, 100x1 no. 5AK295268 and 10x1 no. 87T817827 which was with seizure memo. The case property of personal search of accused i.e. Rs. 221/- currency notes, one black purse, some papers, one mobile and one chain. The copy of the said entry of register no. 19 was taken on record and Ex.PW6/A(OSR). He had brought case property of present case in light yellow envelope which was opened with the permission of the court from which two small white envelopes were taken out. The said small white envelope were having seal of AK. The seal of first envelope was broken with permission of court and from which one 50 rupee note was taken out having no. JFL653863. The seal of second envelope was broken with permission of court and from which two currency notes of rupee 100x1 and 10x1 were taken out with no. 5AK295268 and 87T817827 respectively.
9. PW-7 HC Rakesh stated that on 21.05.2008, he was posted at PS Kamla Market as Ct. and on that day, he along with SHO Insp. Bala Sharma and driver Ct. Nidan in Govt. vehicle bearing no. DL-1CJ-3601 i.e. white colored gypsy were on patrolling duty in the area of PS Kamla market. During patrolling when they reached near police booth, opposite Kotha no. 42, they met beat staff HC Charatlal and Ct. Ajay. SHO Insp. Bala Sharma left them there and she herself along with HC Charatlal and Ct. Ajay went in the area of concerned beat for patrolling. On that day, they returned to the PS at about 12 ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:24:17 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 14 of 24 midnight. IO recorded his statement.
10.PW-8 ASI Nidan Singh deposed that on 21.05.2008, he was posted as Ct./driver at PS Kamla Market. On that day, he along with SHO Insp. Bala Sharma and operator Ct. Rakesh in Govt. vehicle bearing no. DL 1CJ 3601 i.e. white colored gypsy were on patrolling duty in the area of PS Kamla market. During patrolling when they reached near police booth, opposite Kotha no. 42, they met beat staff. SHO Insp. Bala Sharma left them there and she herself along with police staff went in the area of concerned beat for patrolling. On that day, they returned to the PS at about 12 midnight. IO recorded his statement. Ld. APP for state sought permission to ask a leading question to the witnes which was granted. During cross-examination he admitted that on that day, they met with HC Charat Lal and Ct. Ajay in front of police booth and SHO accompanied them while conducting patrolling in the area of beat.
During cross-examination by Ld. Counsel for both the accused persons he stated that log book regarding running of Govt. Vehicle was being maintained by him at that time. He had not handed over the copy of log book to the SHO on that day i.e. 21.05.2008. He voluntarily stated that they usually made the entry after completion of duty with Govt. Vehicle and made entry in log register/book of the distance covered by the vehicle on that particular day and got the same signed by the officer concerned who was on duty with him. He denied the suggestion that neither any entry was made on 21.05.2008 by him nor the same was signed by the SHO who was traveling with him in the said Govt. vehicle, therefore, he had not given the copy of log book to the SHO.
11.PW-9 (wrongly numbered as PW-8) ACP Bala Sharma deposed that on 21.05.2008, she was posted as SHO at PS Kamla Market. On that day at about 6:50 pm, she along with Ct./Driver Nidan Singh and Ct. Rakesh was on ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:24:37 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 15 of 24 evening patrolling duty. During patrolling she received information regarding one girl and one boy were seducing the public persons by making illicit gesture from secret informer. Thereafter, she along with aforesaid officials went at the spot i.e. near Kotha No. 49, GB Road, where SI Anuj Aggarwal, HC Charat Lal, Ct. Ajay Kumar and Lady Ct. Sunita and other staff met them. She explained about the said secret information to the aforesaid officials and constituted a raiding party. Thereafter, she asked several public persons to join as the public witness to become decoy customer, however, only one person namely Shakur Ahmed got ready to become decoy customer. Thereafter, HC Charat took the personal search of witness Shakur and prepared seizure memo already Ex.PW1/C bearing her signature at point D. She handed over signed currency note of Rs. 160/- consisting of 3 notes of Rs. 100/-, one note of Rs. 50/- and one note of Rs. 10/- and noted down their serial number and prepared handing over memo already Ex.PW1/C bearing her signature at point D. She briefed the raiding party and made witness Shakur Ahmed as a Decoy Customer and asked him to give signal by waiving his hand over his head after finalizing the deal. The raiding team took position and Shakur Ahmed alongwith Ct. Ajay proceeded to Kotha No. 52 and after reaching there he talked to a boy and a girl and after sometime he gave the decided signal by waiving his hand over his head. After getting the signal they rushed towards Kotha No. 52. She apprehended the girl with the help of Lady Constable Sunita and other boy was also apprehended by HC Charat Lal. After interrogation, the name of the girl was revealed as Kavita and name of the boy was revealed as Subhan Khan. She took the search of Kavita with the help of lady Ct. Sunita and 2 signed currency notes of Rs. 100/- and Rs. 10/- were recovered from her right hand. HC Charat Lal along with SI Anuj Aggarwal took the search of Subhan Khan and 1 signed currency note of Rs. 50/- was recovered from his possession. She put the currency notes of Rs. 100/- and Rs. 10/- recovered ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:24:58 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 16 of 24 from accused Kavita in a white envelope and sealed the same with the seal of BS which was already Ex.PW1/A bearing her signature at point D. Thereafter, she put the currency notes of Rs. 50/- recovered from accused Subhan Khan in a white envelope and sealed the same with the seal of BS which was already Ex.PW1/B bearing her signature at point D. She prepared the rukka which was Ex.PW8/A bearing her signature at point B and handed over the same to Ct. Ajay Kumar with direction to registration of FIR. Accordingly, Ct. Ajay went to PS for registration of FIR. She prepared site plan at the instance of witness Shakur Ahmed Ex.PW8/B bearing her signature at point A. After sometime, Ct. Ajay came to the spot along with copy of FIR and original rukka and handed over the same to her for further investigation. She arrested the accused Kavita and prepared arrest memo already Ex.PW2/A bearing her signature at point C and conducted her personal search and prepared personal search memo already Ex.PW2/B bearing her signature at point C and arrested the accused Subhan Khan and prepared arrest memo already Ex.PW4/A bearing her signature at point C and conducted his personal search already Ex.PW4/B bearing her signature at point C. Accused Kavita disclosed to the IO that out of Rs. 160/- she kept Rs. 60/- for herself and gave Rs. 50/- to the manager of the Kotha namely Ameena Bagum. She tried to search the accused but she ran away from the spot. Thereafter, she recorded the disclosure statement of accused Kavita which was already Ex.PW1/A bearing her signature at point D and also recorded the disclsure statement of accused Subhan Khan Ex.PW1/B bearing her signature at point D. Thereafter, they returned to the PS and the case property was deposited in the malkhana and accused persons were lodged in the lockup after their medical examination. Thereafter, she recorded the statement of witneses. (Witness correctly identified the accused Kavita and Subhan Khan in the Court). At that stage, it was noted that case property had already been exhibited during the testimony of PW-1 as Ex.P-1 (colly). Hence, ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:25:20 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 17 of 24 case properties were exempted from reproduction.
During cross-examination by ld. Counsel for the accused persons she stated that she left PS for patrolling at about 5:15/5:30 pm. She had not placed on record, copy of log book with regard to her government gypsy. She denied the suggestion that since she was not on patrolling duty, therefore, she had not placed on record the copy of log book while filing the chargesheet in the Court. She had informed about the secret information in the PS to Division Officer, Anuj Aggarwal. The place of occurrence was at a distance of one and a half kilometer from the PS. She reached at the spot from the PS in a short time. At the time when she reached at the spot, some of the shops were opened whereas some of the shops were closed. Those shops were of Hardware, water motor and machinery. She asked several shopkeepers who were found at their respective shops to join the investigation but they refused to join the same. She did not remember the shop number of shopkeeper to whom she requested to join the investigation. She admitted that she had not served any notice upon the persons who refused to join the investigation due to paucity of time. During her tenure as SHO PS Kamla Market, Shakur Ahmed was the witness in the present case, whereas she could not tell that as to whether he was witness in other cases of PS Kamla Market or not. She joined PS Kamla Market as SHO on 22.02.2008 and remained there till September, 2009. She denied the suggestion that Shakur Ahmed was the stock witness of PS Kamla Market that was why he was made witness in several cases. She gave Rs. 160 to Shakur Ahmed from her own pocket. She admitted that she had not taken any reimbursement of the said money from Government. She denied that she had not given any money to Shakur Ahmed and the entire proceedings with respect to handing over memo was prepared in the PS. She was at a distance of 50-100 meters from Veranda in front of Kotha No. 51 and 52. One lady constable Sunita and HC Charat were present at the distance of around 50 meters from ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:25:40 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 18 of 24 the aforesaid place. She admitted that she had not shown the place where she as well women constable Sunita, HC Charat Lal, and SI Anuj Aggarwal were present at the time when Shakoor Ahmed and Ct. Ajay Kumar were asked to visit at Veranda at Kotha No. 52, G.B. Road, Delhi. She denied the suggestion that since neither herself nor women constable Sunita, HC Charat Lal and SI Anuj Aggarwal or constable Ajay as well as decoy customer Shakoor were present at the alleged place of occurrence, therefore, she had not mentioned their location in the site plan or that no such incident occurred as mentioned by her in her initial complaint or that no money was recovered from accused Kavita and accused Subhan Khan. She had mentioned the fact that she handed over seal after use to SI Anuj Aggarwal in daily diary maintained at the police station as well as in the case diary maintained by her. She admitted that she had not made any entry to that effect in the rojnamacha. She voluntarily stated that that fact found mention in case diary. Her seal after use which was given to SI Anuj Aggarwal was deposited by him in the Malkahana along with the recovery envelope/pullinda. She did not remember when she took her seal from malkhana. She might had taken the same if same was required by her for the purpose of investigation of any case. She denied that she had not placed on record such document showing that when SI Anuj Aggarwal deposited her seal and when she took the same from Malkhana. She also denied that the accused persons in the present case were falsely implicated and arrested. She admitted that she had not placed on record copy of DD entry with regard to taking back her seal, as she did not think it was necessary to be placed on record. She denied the suggestion that all the recovery memos were prepared in the police station or that the site plan was also prepared by her in the police station or that the disclosure statement of accused Kavita was prepared by her in the police station under duress or that accused persons had been falsely implicated in the present case and they had not committed any offence or that she was deposing ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:26:00 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 19 of 24 falsely.
12.PW-3 (incorrectly numbered as PW-9 called to prove DD entries) ASI Brij Lal deposed that on 21.05.2008, he was posted at PS Kamla Market as DO. On that day, he recorded the departure entry vide No. 22A of SI Anuj Aggarwal who left to the spot from PS Kamla Market for patrolling with Ct. Nidan Singh, Ct. Rakesh (Operator) on Govt. vehicle bearing no. DL-1CJ-3601 which was marked as Mark A. On the same day, he recorded the departure entry of police staff to their respective beat area of PS Kamla Market vide No. 48B at about 5:20 PM which was marked as Mark B. The original daily diary register (rojnamcha) could not be produced as the record for the period upto 31.12.2009 had been destroyed by the office Additional Commissioner of Police, Central District, Delhi which was at serial no. 1 vide order no. 8110-55 dated 06.03.2020, same was marked as Mark C. During cross-examination by ld. Counsel for the accused persons he stated that he had recorded both the entries as stated above in rojnamcha entry. Both the DD entries were in his handwriting but did not bear his signature. He denied the suggestion that since both DD no. 22A and 48B dated 21.05.2008 were not recorded by him and that was why he had not signed the same. He could not tell name of authority who had issued the order dated 06.03.2020. The said record had not been destroyed in his presence and he did not have any personal knowledge about the destruction of the record.
13.Thereafter, prosecution evidence was closed on 11.02.2021. Statements of accused Subhan Khan and Kavita were recorded on 24.02.2021. During their SA both accused stated that they do not wish to lead defence evidence. Hence, the final arguments were concluded on 20.03.2021.
ANURAG Digitally signed by ANURAG THAKUR THAKUR 02:26:19 +05'30' Date: 2021.03.26 FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 20 of 24
14.At this juncture, it is profitable to reproduce the sections 4,5,7 & 8 of ITP Act in verbatim:-
4. Punishment for living on the earnings of prostitution.-(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years].
[(2) Where any person over the age of eighteen years is proved-
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).
5. Procuring, inducing or taking [person] for the sake of prostitution.-(1) Any person who-
(a) procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or 1[person], whether with or without [his] consent, for the purpose of prostitution; or
(b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a [person], or causes a [person] to be taken, from one place to another with a view to [his] carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a [person] to carry on prostitution,[person] to carry on prostitution, [shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this sub-section,-
(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;] [***] (3) An offence under this section shall be triable-
(a) in the place from which a [person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such [person] is made; or 1[person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such 1[person] is made; or"
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
7. Prostitution in or in the vicinity of public places.- [(1) Any [person], who carries on prostitution and the person with whom such prostitution is carried on, in any premises,-
(a) which are within the area or areas, notified under sub-section (3), or
(b) which are within a distance of two hundred metres of any place of public religious ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:26:40 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 21 of 24 worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.] [(1A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.] (2) Any person who-
(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub- section (1) knowingly permits the same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord, of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine [which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year:
Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled. Explanation.-For the purposes of this sub-section, "hotel" shall have the meaning as in clause (6) of section 2 of the Hotel Receipts Tax Act, 1980 (54 of 1980).] [(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification. (4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty (5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.]
8. Seducing or soliciting for purpose of prostitution.-Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not-
(a) by words, gestures, wilful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or
(b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees:
ANURAG ANURAG THAKUR Digitally signed by THAKUR Date: 2021.03.26 02:27:00 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 22 of 24 [Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.] Upon hearing the arguments of the ld. APP for state and the ld. defence counsel and on perusal of the case file, my observations regarding the evidence led at the trial are delineated as under.
15.The investigation for offences alleged to be committed under the ITP Act is to be conducted by a Special Police officer appointed by or on behalf of the State Government as per extant provisions of section 13(1) of ITP Act which reads as follows:-
13. Special police officer and advisory body.-(1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area.
In the case at hand, the IO Inspector Bala Sharma no where stated that she was a special police officer appointed or designated under section 13(1) of the ITP Act. No notification or resolution appointing her to investigate offences under the ITP Act has been produced or proved on record. The Delhi High Court in the case of Mumtaj v. State (Government of NCT of Delhi) 2002(100) DLT 286 held as follows:-
6. In this case, the entire proceedings were conducted by SI V.P. Jha who was not appointed as Special Police Officer under the Act. It is not a question of mere irregularity in the procedure. It goes to the very root, competence and jurisdiction. Therefore, on the strength of law laid down by the Supreme Court in the case of Delhi Admn. (supra), the entire proceedings namely search, investigations, arrest and prosecution by S.I. V.P. Jha has to be held to be illegal.
The judgment of the High Court of Delhi relied upon the judgment of the Apex Court delivered in the case titled as Delhi Administration v. Ram Singh 1962 AIR 63. It is apposite to refer to the following portion of that judgment to further clarify the issue:-
We are therefore of opinion that the special police officer is competent to investigate and that he and his assistant police officers are the only persons competent to investigate offences under the Act and that police officers not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences. The result is that this appeal by the Delhi Administration fails and is hereby dismissed.
From both the aforementioned decisions, it is amply clear that the criminal ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:27:20 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 23 of 24 proceedings are invalid if investigation is conducted by any police officer irrespective of his rank, if he is not specially designated u/s 13(1) of the ITP Act. This lacuna in the present case in itself is sufficient to dismiss the case and acquit the accused persons.
16.Secondly, PW-1 Shakur Ahmad is the star witness of the prosecution. During his examination-in-chief, he stated that he joined the raiding party on 22.05.2008 at 06:30 p.m but after moving 25-30 steps, he left the raiding party and went to his barber shop. He stated that he knew nothing about the case.
However, upon cross-examination by the ld. APP for the State, he admitted the entire case of prosecution but surprisingly, during cross-examination by the ld. defence counsel, he again stated that he is illiterate and he did not know the particulars of the papers on which he put his thumb impression. He admitted that no documents were prepared at the spot by police. He also stated that his statement was not recorded by police in his presence. He failed to remember whether SHO Bala Sharma or any other police official gave money to him on the date of the incident or not. He admitted that he had been made witness in number of cases by the police under the ITP Act. He submitted that the papers were not read over to him by the police. The entire testimony of PW-1 is such that the same is not creditworthy and if taken in toto, the same is of hardly any help to the prosecution. The decoy customer sent by police has himself further obfuscated the case of the prosecution as he mentioned wrong date of incident in his testimony. The testimony of shadow witness PW-4 Ct. Ajay Kumar could not be concluded and his cross-examination remained incomplete, so his testimony cannot be read in support of the case of prosecution. The remaining prosecution witnesses were at a considerable distance from the spot where they could not have heard the conversation between Shakur Ahmed and the accused persons and their testimonies regarding the conversation between Kavita, ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.03.26 02:27:41 +05'30' FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market Page 24 of 24 Subhan Khan and Shakur Ahmed are hearsay and cannot be relied upon to substantiate the allegations made.
17.There are other noteworthy deficiencies in the case of prosecution like seizure memos of currency notes having the particulars of the FIR despite the fact that they were prepared even prior to the preparation of rukka. The search memo of decoy customer Shakur Ahmed also suffers from the same defect. The site plan is a sign of shoddy investigation, it does not show even the pillars in the veranda behind which four persons of the raiding party hid themselves waiting for the decided signal from the decoy customer. Nothing is known about the timing when the seal of IO Inspector Bala Sharma was returned to her, so the chance of tampering with case property cannot be ruled out. It is incomprehensible that the illiterate decoy customer who put his thumb impressions on all the papers remembered all the numbers of the 3 currency notes purportedly handed over to him by the IO for the purpose of raid. To conclude, the case of prosecution is riddled with inconsistencies and deficiencies. The credibility of the case adumbrated by prosecution had eroded beyond repair. Consequently, accused Kavita is acquitted of the offence u/s 7 & 8 of the ITP Act and accused Subhan Khan is acquitted of offence u/s 4 & 5 of the ITP Act.
Announced in the open court
ANURAG Digitally signed by
on 25th March, 2021 ANURAG THAKUR
THAKUR Date: 2021.03.26
02:28:03 +05'30'
(ANURAG THAKUR)
METROPOLITAN MAGISTRATE -02
TIS HAZARI COURTS, DELHI
This judgment consists of 24 pages
and each and every page of this
judgment is signed by me
FIR no. 69/08 State vs. Subhan Khan & Anr. PS Kamla Market